Bringing
To Book The Guilty
Men Of Baghdad
By Siddharth Varadarajan
11 January, 2007
The
Hindu
Of all the excuses served up
by the United States in the aftermath of the outsourced lynching of
Saddam Hussein on December 30, none is more dishonest than the claim
that the trial, conviction, sentencing, and execution of the deposed
Iraqi President was solely the handiwork of the "sovereign"
government of Iraq.
Apart from micromanaging
the trial court's statute, the U.S. actively assisted the Iraqi Higher
Criminal Court through the Regime Crimes Liaison Office (RCLO) housed
in the American Embassy in Baghdad. U.S. minders from the RCLO oversaw
the tenuous evidence produced in the Dujail case against Saddam, the
serious deficiencies in trial procedure which have been amply documented
by United Nations working groups and others, the blatant politicisation
of the trial by the occupation-installed government of Prime Minister
Nouri al-Maliki, as well as the deliberate scuttling of Saddam's right
to a proper defence.
Moreover, the U.S. military
had direct physical custody of Saddam from the point of his arrest until
several minutes before his execution. U.S. custody was resumed immediately
thereafter, when the body was loaded on to an American helicopter for
eventual disposition in Tikrit. One cannot create a court, train its
judges, take a man to the gallows, and thence to his grave, and then
claim one had nothing whatsoever to do with the manner of his death.
The irony is that there would
have been no reason for any American or British leader to disown responsibility
for the lynching — or plant stories about "differences"
with the Iraqi government about the timing and mode of execution —
had the sinister hooded men who finally dispatched Saddam stuck to a
sanitised script. Like the widely circulated picture postcards of lynchings
across the American south in the early 20th century, the grainy cell-phone
video of Saddam's last moments conveyed to the whole world the tastelessness
of raw power unrestricted by either law or morality. But unlike those
good ol' American lynchings — in which the mob leaders posed proudly
by their hanging Black trophies — the ringleaders of the Baghdad
hanging party absented themselves from the embarrassing frame, preferring
the "plausible deniability" of being sound asleep in Texas
and Washington.
When L. Paul Bremer and the
Coalition Provisional Authority drafted the original statute of the
Iraqi Higher Criminal Court in 2003, they were careful to limit its
mandate in two crucial ways. First, the court was given jurisdiction
only for war crimes and crimes against humanity committed between July
17, 1968, and May 1, 2003. And secondly, it was stipulated that the
court could try any natural person "whether Iraqi or non-Iraqi"
suspected of committing these grave offences provided he or she was
a "resident of Iraq."
The first limitation ensured
that the court would not have any jurisdiction over U.S. occupation
troops and commanders stationed in Iraq after President George W. Bush
declared the end of "major combat operations" on May 1, 2003.
This is regardless of overwhelming evidence that these troops have engaged
in the killing and torture of non-combatants in Hadithiya, Fallujah,
Abu Ghraib, and other places in Iraq over the past three-and-a-half
years. The second limitation — of residency — ensured that
the court would not be free to probe charges that U.S. persons had committed
war crimes and crimes against humanity against the civilian population
of Iraq prior to May 1, 2003. This means that the charge of U.S. collusion
with the dictatorship of Saddam Hussein in the commission of atrocities
against the Iraqi Kurds and against Iran, not to speak of the genocide
of Iraqi children caused by the 12-year-long economic embargo of the
country, nor indeed the killing of civilians through the disproportionate,
unnecessary, and wholly illegal use of air power and military force
from 1991 up to May 1, 2003, would be completely outside the purview
of scrutiny by the special "higher" Iraqi tribunal.
For the U.S., the introduction
of these caveats was absolutely necessary because any legal process
that assigns criminal liability to Saddam would naturally run the risk
of assigning criminal liability to others who committed similar acts.
Disproportionate force
The court's statute stresses that an individual can be charged with
war crimes or crimes against humanity if the impugned violence he orders
or takes part in is "part of an extensive and systematic action
launched against the civilian population" and is known by him to
be so. Both the Saddam regime and the U.S. invasion and occupation took
the lives of thousands of civilians. Though the U.S. acknowledges countless
civilians have been killed in its military actions in Iraq, it denies
any criminal liability on the grounds that it does not "intentionally
target civilians." Broadly speaking, whatever defence Saddam was
allowed to mount essentially revolved around the same claim.
In its 298-page written opinion,
the Iraqi court rejected this claim. But in finding Saddam guilty, it
has, paradoxically, opened the way for criminal liability to be assigned
to U.S. leaders and commanders, as and when a future sovereign Iraqi
government has the courage to remove the unnatural restrictions placed
on the higher court's mandate. The court listed several pieces of evidence
that, it claimed, established Saddam's guilt but not beyond reasonable
doubt. To make the final leap, therefore, the court was forced to construe
the disproportionate, excessive, and unnecessary use of force as tantamount
to extensive and systematic action against civilians.
Since there was no direct
evidence linking Saddam to the death of civilians, the tribunal argued
that the disproportionate use of force against Dujail town by the Iraqi
government and armed forces in the aftermath of the failed assassination
attempt on Saddam in 1982 was in and of itself a crime against humanity
for which he bore "collaborative" criminal liability. That
attack led to the death of eight civilians as well as the subsequent
arrest, trial and execution of around 100 others, besides the death
in custody due to torture or neglect of another 40. "Saddam Hussein,"
it ruled, "issued his orders, directly or indirectly... to attack
the town of Dujail after the unsuccessful attempt on his life by a few
individuals and that large-scale attack was not necessary nor appropriate
for that very limited attempt ... perpetrating those acts which were
a violation of the law, and shelling of fields while their owners were
in them with helicopters was not necessary and was not an `appropriate'
answer at all from the points of quantity and quality ... That large-scale
and organized attack and its effects constitute crimes against humanity,
including deliberate killing as a crime against humanity."
If the attack on a town,
which claimed the life of eight civilians and then another 140 more
over two years, constitutes a crime against humanity, what about the
"large-scale and organised" U.S. attack on the whole of Iraq,
which initially claimed the lives of up to 10,000 civilians and has
since led to the death of 650,000 more innocent Iraqis? Saddam Hussein
could at least claim there was an attempt on his life; but what about
the weapons of mass destruction Mr. Bush said the invasion of Iraq was
all about?
The legal precedent of establishing
criminal liability extends also to torture. The court ruled that though
"none of the plaintiffs has stated that Saddam has personally tortured
them ... [or] that Saddam has ordered that," the deposed President
was nevertheless guilty as charged. Saddam, it said, had "implicitly
acknowledged his awareness of those practices that took place at the
intelligence and Abu Ghraib prisons" when he said in court, `Such
acts and harms that occurred against [the plaintiffs] were a mistake
and violate the law.' Based on that, this court sees that the accused
Saddam Hussein had issued an order ... which is an order, even if it
is not explicit, to torture the victims from the Dujail residents ...
Therefore, the accused is criminally accountable for torturing the Dujail
residents."
In the case of the torture
of Iraqi civilians by U.S. soldiers in Abu Ghraib, there is documentary
evidence of the fact that the Bush administration — at the highest
levels — had sanctioned illegal interrogation methods. Senior
U.S. officials, including President Bush, have acknowledged the reality
of what happened and described them as "mistakes," much as
Saddam did in court. If Saddam could be held criminally accountable
for torture despite the absence of any written order, any honest court
would not think twice before convicting Mr. Bush and Donald Rumsfeld
for what went on in Abu Ghraib. The Iraqi court and those who control
it are, of course, not honest. But a crucial test of sovereignty and
democracy for any future Iraqi government will surely be its willingness
to hold to account the criminals who have scripted the terrible tragedy
that has been enacted in Iraq since the 2003 invasion.
Copyright © 2007, The
Hindu.
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